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NEDC’S QUICK OVERVIEW OF ADMINISTRATIVE LAW

AND GUIDE TO PERMIT COMMENTING

Protecting the Environment through Public Participation in Agency Decisionmaking

Much of the work that students perform for NEDC involves some interaction with a government

agency, for instance the Oregon Department of Environmental Quality (DEQ), the U.S. Environmental

Protection Agency (EPA) or the Bureau of Land Management (BLM). The American system of

environmental regulation makes an effort to involve the public as much as possible (in theory, at least), and

this gives us the ability to act as agency “watchdogs” to ensure that our environmental laws are being

implemented and enforced appropriately.

It is quite possible that the first project you tackle for NEDC will be to research and draft a set of

“comments” – essentially a detailed letter to an agency concerning an upcoming agency action (i.e., the

issuance of a discharge permit under the Clean Water Act, or the sale of timber from Forest Service land) in

which you try to point out ways that the agency is not being protective enough of our natural resources.

(You will quickly learn that this is usually the case!). This guide will give you an overview of how the

agency decision-making process works, and why public participation is so important.

This guide will hopefully bring you up to speed on this critical function of NEDC. Because your first

project or set of comments will probably feel very daunting, some background information may help

alleviate your anxiety. Remember, you don’t have to read this whole thing! NEDC is a volunteer

organization, and we know you already have many competing obligations in law school You should never

feel obligated to tackle a project for NEDC if you feel you just don’t have the time. That said, it is important

to do a good job on your comments or other projects because you will be representing the organization. As

always, if you feel you don’t have enough guidance or information, don’t hesitate to ask! Thanks for your

participation – you are making a difference to the environment of the Pacific Northwest, and adding

important practical knowledge to your legal education.

The NEDC Staff

September, 2006

Contents:

1) Public Participation in Environmental Regulation ………………………………………………….… 2

Provides an overview of Administrative law (which governs how environmental regulatory

agencies such as DEQ and EPA operate), and an explanation of how and why the public

is included in agency decisionmaking and permitting.

2) Tips for Effective Public Commenting ………………………………………………………………… 12

A brief guide created by [federal agencies] on how to effectively comment.

3) The Art of Commenting ………………………………………………………………………………... 15

Some helpful hints on preparing and writing a set of comments, this time from a public

Interest perspective.

4) Additional Resources ………………………………………………………………………………….. 16

Where to go next – online guides, books, people, etc.

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The following is an excerpt from the report

Public Participation in Environmental Regulation,

published by the Environmental Law Institute, January 1991.

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The following is a selection from Tips for Effective Public Commenting, a publication of NOAA Fisheries

(the full document is available at http://www.fakr.noaa.gov/prules/effectivecomments.pdf)

Although written specifically to advise the public on how to comment on actions taken by NOAA Fisheries,

most of the pointers here are equally valid when writing to other government agencies as well.

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Preparation and Organization

Begin your work well before the comment deadline.

Read the proposed rule.

Make sure you understand the applicable laws and regulations and exactly what they cover. Contact

the agency expert if you need additional information.

Ensure that you fully understand each issue being discussed so that your comments are fully relevant.

Underline or highlight the issues that you wish to respond to.

Outline your thoughts on a piece of paper before beginning to write your comment.

Format

Comments should be typed, legible, and easy to read.

Comments should be submitted on 8 1/2 by 11-inch paper unless submitted electronically.

Mailed comments should be sent to the appropriate address, e-mail, or fax number indicated in the

ADDRESSES section of the proposed rule.

Comments may also be submitted by web form at the Federal Rulemaking Portal:

www.regulations.gov. Follow the instructions at that site for submitting comments.

Submissions should include the comment submitter’s name, address, and phone number. Anonymous

submissions will not be considered.

Comments must be delivered, postmarked, or dated, by the deadline indicated in the DATES section

of the proposed rule.

Refer to the docket number, program title, or use the document identifier in the ADDRESSES section

for electronic comments listed in the Federal Register notice in a subject line or in the first sentence

of the comment.

Content and Style

Clearly identify the issues in the notice you are commenting on.

Confine comments to the Federal Register notice you are referencing.

o Keep comments targeted to the issues within the scope of the proposed rule.

o Avoid addressing different rules or policies in your comment.

If you are commenting on a particular word, phrase, or sentence please provide the page number,

column, and paragraph citation of the particular issue as indicated in the Federal Register notice

Clearly indicate if you are for or against the proposed rule or some part of it, and why.

Agency reviewers look for good science and reasoning in the comments they evaluate.

o Where available, use data to support your position.

If you disagree with a proposed action, suggest an alternative and how the alternative might meet the

same objective.

If a proposed rule raises many issues, do not feel obligated to comment on every one.

o Select those issues that you are most concerned about, that affect you the most, and that you

understand the best.

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If you are commenting in your capacity as a professional (scientist, attorney, fisherman, businessman,

etc.), say so. To the extent appropriate and possible, briefly identify your credentials and experience

that may distinguish your comments from others.

Clearly indicate if you are commenting as an official representative or spokesperson for an

organization. Provide a brief overview of your organization, its size, and its interest in the matter.

To the extent possible, personalize your comments. Give real-life examples of how the proposed rule

would impact you negatively or positively. If appropriate, indicate how failures to comply with the

proposed regulation may adversely affect you.

Research opposing views from your own, and take note of any specific opinions or facts that you

disagree with. In your own comments, provide detailed information to counter information you

perceive to be incorrect from these other sources.

Include copies of articles or provide a list of references that support the comments. Only relevant

material should be submitted.

[Federal agencies] encourage comment submitters to be courteous, professional, and respectful.

Although [federal agencies] appreciate and willingly receive any comments, constructive comments,

whether negative or positive, are best.

Refrain from using politically-charged rhetoric.

A rant may make you feel better, but it will not help the agency resolve any problems.

Review

Read through what you’ve written before submitting your comments. Sometimes it helps to wait a

day or two before reviewing your comments.

Ask someone you know who can quickly give you objective feedback to review your comments

before you submit them.

Form Letters

Organizations often encourage their members to submit form letters designed to address issues

common to their membership. Organizations including industry associations, labor unions, and conservation

groups have used form letters to voice their opposition or support of a proposed rule. Many in the public

mistakenly believe that their submitted form letter constitutes a “vote” regarding the issues concerning them.

While public support or opposition may help guide important public policies, [federal agencies] make

determinations for a proposed action based on sound reasoning and scientific evidence, not a majority of

votes. A single, well-reasoned comment may carry more weight than a thousand irrational and poorly

researched form letters.

Moreover, large volumes of form letters impose significant administrative costs on the agency and

provide little value to the administrative process. When [federal agencies] receive large volumes of form

letters, each letter must be carefully reviewed to ensure that any additional comments added to the form letter

are considered, which requires substantial time and staff resources. Additionally, large volumes of form

letters can impair processing equipment by jamming fax machines, overloading email accounts, and

preventing other comments from being received. This can create a substantial drain on the agency’s

resources without providing any real benefit to the submitting organization or to the general public.

However, [federal agencies] recognize an organization’s desire to express public support or opposition to a

proposed action. Therefore, [federal agencies] recommend that if an organization wishes to indicate

widespread support or opposition by their membership or the public, they submit a single copy of the

comments contained in their form letter along with an attached list of signatures from their membership or

other interested parties. Those organizations should continue to encourage their members to submit their own

additional comments if they wish to do so.

What happens to comments after they are submitted?

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All proposed and final rules issued by [federal agencies] are published in the Federal Register,

issued Monday through Friday. Pending matters open to public comment often are reported by the news

media and also can be found on [federal agencies’ websites], and the Federal e-rulemaking portal,

www.regulations.gov. When [federal agencies] receive a comment letter, it is logged, numbered, and placed

in a file for that docket. Regulatory specialists then summarize each independent comment within the

comment letter and develop responses to those comments. After careful consideration of the comments and

concerns on a proposed rule, [federal agencies] will usually summarize all comments received, respond to

them in a final rule if approved, and publish a final rule including those

comments and responses, unless a decision is made that the proposal should not be finalized.

Additional Questions

What is a proposed rule notice?

A proposed rule is a regulation published by an executive-branch department or administrative agency in the

Federal Register for review and public comment prior to its adoption. A proposed rule describes a change to

the regulations the agency feels would benefit the resource and the public and invites public comment on the

proposed change. Proposed rules are not law.

What is a Notice of Availability?

An NOA is a notice published in the Federal Register that announces the availability of an analysis

document for public comment. The NOA notifies the public of the availability of environmental documents

required under the National Environmental Policy Act (NEPA) so as to inform those persons and agencies

who may be interested or affected. The NOA is distinct from a proposed rule notice and may be commented

on separately.

Why should I comment on a proposed rule or NOA?

Public comments give the agency valuable insight for determining if a potential effect from a proposed rule

or NOA will be positive or negative from a public perspective. Public comments may also help the agency

identify issues it might not have initially considered. Public comments often help direct the agency’s

prospective policy on a given issue.

Do my comments have any affect on the Federal rulemaking process?

Absolutely! Public input is imperative to helping the agencies make prudent, well-reasoned decisions. More

importantly, public input is imperative to maintaining democratic principles in determining the wise use of

publicly-owned resources.

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[NOTE: The section above was written by NOAA Fisheries, not NEDC.]

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The following helpful checklist on writing comments is modified from the Table of Contents of the book

The Art of Commenting: How to Influence Environmental Decisionmaking with Effective Comments

by Elizabeth D. Mullin, published by the Environmental Law Institute, 2000.

(this book is available in the Boley Law Library)

I) Preparing to Comment

Step One: Set the Stage

o Identify Your Contact

o Plan Ahead

o Coordinate Your Comments With Others

Step Two: Identify and Collect Background Material

o Statutes

o Regulations

o Agency Materials and Guidance

o Sample Documents for Use as Examples

o Substantive Materials and Information

Step Three: Review the Material

Step Four: Make a Checklist

II) Reviewing the Document.

Step One: Review the Table of Contents and Skim the Document

Step Two: Read the Document

o Check the Document Against Your Checklist

o Check for Substantive Errors or Omissions

o Spot Check for Internal Accuracy.

o Check for Consistency With Other Information You Have

Step Three: Review Your Notes for Major Problems and Themes

III) Defining Your Objectives

IV) Writing the Comments

Cover Letter

o Tip One: Clearly Identify the Document Reviewed

o Tip Two: Establish Your Authority to Comment

o Tip Three: Include Any Pertinent Commenting History

o Tip Four: Identify Attachments, If Any

o Tip Five: For Lengthy Comments, Briefly

Summarize Your Major Concerns

Organization and Format.

o Tip One: Use Headings

o Tip Two: Prepare General Comments

o Tip Three: Write Page-by-Page Comments.

o Tip Four: Make Your Comments Easy to Read

Style

o Tip One: Use Topic Sentences

o Tip Two: Use Short Sentences (50 words or fewer)

o Tip Three: Use the Active Voice.

o Tip Four: Do Not Ask Questions

o Tip Five: Be Respectful

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V) The Art of Commenting

Pounding the Law

Pounding the Facts

Pounding the Table

What to Say

o Tip One: Make the Strongest Possible Points

o Tip Two: Suggest Specific Language When Possible and Appropriate

o Tip Three: Indicate What You Support as Well as What You Disagree With.

o Tip Four: Give Specific Examples to Illustrate Concerns

o Tip Five: Provide Supplemental Information, If Needed

o Tip Six: Offer Helpful Solutions

VI) What Next?

Comments on Internal Documents

Public Comment on Agency Documents

o Option One: Review Other People’s Comments

o Option Two: Submit Additional Comments

o Option Three: Speak at Any Public Meeting or Hearing

o Option Four: Rally Support for Your Position

o Option Five: Lobby Your Buddy

o Option Six: Meet With the Decisionmaker

o Option Seven: Involve a Legislator

o Option Eight: Go to the Press

ADDITIONAL RESOURCES:

Take Administrative Law (required for the Environment and Natural Resources certificate)

The book referenced above (The Art of Commenting) is available in the law library – call number

KF3775.Z9 M85 2000. It’s great!

Memorandum, EFFECTIVE PUBLIC PARTICIPATION UNDER THE NATIONAL ENVIRONMENTAL POLICY

ACT, Prepared by the US Department of Energy, 1998. Available online at

http://www.eh.doe.gov/nepa/tools/guidance/pubpart2.html. This lengthy memo is intended to guide

DOE regulators as to the legal and policy requirements governing DOE decisions that involve NEPA.

Has some useful information, though.

Wikipedia: Rulemaking, available at (http://en.wikipedia.org/wiki/Rulemaking). No kidding, its

pretty clear and concise. It also has good entries for the Administrative Procedure Act and most

federal agencies.

Information on the EPA’s Public Involvement Policy is available online:

(http://www.epa.gov/publicinvolvement/policy2003/index.htm)

NEDC keeps all of our comments, letters etc. on our network server. There’s a pretty good chance

we have one on file that is similar to the one you are drafting (for instance, we have dozens of past

comments on Clean Water Act discharge permits, aka NPDES permits). Just ask the law clerk to dig

some out for you.

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Ask somebody for help: Project Group Coordinator, Law Clerk, Student Director, Executive

Director, a 2L or 3L that has written comments in the past.